Minority Religions, Social Change, and Freedom of Conscience
Salt Lake City and Provo (Utah), June 20-23, 2002
Through the cases "Kokkinakis" (1993) and "Manoussakis" (1996), Greece gave the European Court of Human Rights ("the Court") the chance to underscore the importance of "freedom of religion" in the value system of a democratic society.
However, for Greek religious minorities themselves, these decisions of the Court, have been half win and half loss.
Indeed, it has been proven by these cases that the laws which render proselytism a criminal offense and according to which a prior administrative permit is prerequisite for the function of a house of prayer raise serious issues of violation of the religious minorities' rights.
The applicants, though, did not succeed in persuading the Court that these laws are the antithesis to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1952) ("the Convention").
Rather, the Court decided that the national authorities have a wide margin of initiative on issues of religion, for which perceptions differ from one community to another.
The hesitation of the Court in the "Kokkinakis" case may be due to the fact that finding of conflict of the law to the Convention would raise the difficult issue of the relation between the Convention and the Constitution, since the prohibition of proselytism in Greece has a constitutional base.
The decision of the Court in the "Manoussakis" case is less comprehensible.
The Court judged that the law would be considered consistent with the Convention only if the competence of the Administration to grant house of prayer permits is limited to examining formal and not substantive requirements.
But the Court did not dare to proclaim the precautionary control system to be in contradiction to the Convention, even though the only formal condition of this system is the filing of an application with the signatures of the applicants verified by the Mayor of the place where they reside.
At the same time the Court avoided clarifying whether the occurrence of a need for the house of prayer is considered as a formal requirement  .
In those two cases the Court was called upon to protect the religious freedom of religious minorities.
Now, in current cases, the Court is being asked to examine the complaints of the Greek religious majority of the Christian Orthodox, which represents from 94 % to 97.5% of the Greek population.
Indeed as we speak, four applications of Greek Christian Orthodox against the decisions of Greek authorities to forbid religious affiliation as an option on national identity cards, are pending before the Court.
In respect to the above background, this paper is trying to give brief answers to two questions:
- What was the impact of the two decisions "Kokkinakis" and "Manoussakis" in the Greek legal system?
- What are the issues raised for the Court where the prohibition of the reference to one's religion on the I.D. card is concerned?
In brief, one could say that the decisions "Kokkinakis" and "Manoussakis"
a. Have left indifferent the Greek legislator;
b. Have slightly improved the position of the Authorities;
c. Did not sufficiently aid the judges to overcome the hesitance they usually exhibit when they have to decide if a law is in accord with the Constitution and/or to an international convention.
The Greek legislator has been slightly influenced by the decisions on the "Kokkinakis" and "Manoussakis" cases.
The provisions of article 3 of the Greek Constitution, which declares that the Christian Orthodox Church is the "prevailing religion" and of article 13, which protects all "known" religions and prohibits proselytism, have not been amended - after agreement between the two major political parties -, by the last Constitutional reform.
Therefore separation of the Church from the State, an idea that finds only a few supporters among the people of the prevailing religion, presupposes a constitutional reform, which may not occur for years.
What is more, the legislator has left intact the laws for the prohibition of proselytism, and, also for the prohibition of operating a house of prayer without prior permit by the Ministry of Education and Religious Affairs.
It should be noted that this permit constitutes the only indirect way with which the state recognizes a religion  .
The inactivity of the legislator has also been demonstrated on the issue of religious communities' legal personality, which, as it is known, has cost Greece another condemnation at Strasbourg in the case "Catholic Church of Hania vs. Greece" issued in 1997.
The only relevant law voted for by the Parliament was the law for the establishment of a mosque and a Muslim cultural center in the wider area of Athens  .
This law, however, was issued chiefly due to pressure from certain Muslim states, and also on the basis of needs of the athletes' and tourists' who will come to Greece for the Olympics of 2004.
The reality is that at least in the wider region of Athens many mosques operate in apartments or houses, without any administrative permit and with the tolerance of the police.
Another legislative initiative was the institutionalization of an optional civil oath, which means that witnesses in court may now choose between a religious or civil oath  .
This law has a symbolic value in the context of a progressive secularization of the Greek State, as witnesses very rarely choose to take a civil rather than a religious oath.
This fact has not prevented a significant number of deputies -- almost 1/5 of all 300 deputies of the Greek parliament -- to apply, in the beginning of this year, for the institution of a commission to investigate the action of "parareligious unions or sects" and to propose measures for confrontation, following the example of other European countries, especially of France and Germany.
According to those representatives, the "heresies", of which only the Jehovah's Witnesses and Scientologists are named, constitute "a major issue of public order and security" and, also, a "crucial social and national problem".
To this application there has been no action taken, so far.
B.It seems that the Administration has understood the message of the Court better than the Greek legislator has.
Since the "Manoussakis" judgment, issued in 1996, up to the present, every application for a house of prayer permit has been accepted by the Ministry of National Education and Religions.
This practice of the Administration changed only when political authority interfered in the relevant decision.
So, since the issuance of the "Manoussakis" judgment, the General Director of Religious Affairs, who is not a political person, was competent to process house of prayer permits. Nevertheless, the application from the Greek Church of Scientology was rejected by the Minister of National Education and Religious Affairs himself.
Indeed, the Government appointment two years ago of a General Secretary of Religious Affairs - a position, which for many years was vacant, - could explain the fact that many applications for the issuance of house of prayer permits by Muslims and supporters of the ancient Greek religion are pending for long time.
An independent administrative authority, "the Attorney of the Citizen" (Ombudsman) has significantly contributed to the protection of religious minorities.
In that respect, by accepting the principle of religious self-determination  , the Attorney of the Citizen, has ruled that to change a person's religion in the archives of the municipal registers, the declaration of the person concerned is sufficient and an order by the public prosecutor or a court judgment are not necessary, as the registration authority had required.
This principle of religious self-determination was also followed by the Ministry of National Education and Religious Affairs on the occasion of the Greek Orthodox Church's reaction to the wish of the Jehovah's Witnesses to call them selves "Christians Jehovah's Witnesses".
The police officers seem also to have been influenced by the "Kokkinakis" and "Manoussakis" judgments.
However, believers of minority religions are still brought to police stations for I.D. control. Many times, for example, missionaries of the Church of Jesus Christ of Latter Days Saints, who distribute leaflets in public places, have been taken to police stations  .
Still, in most cases, Police officers do not act on their own, but only after complaints by citizens and as a result the number of penal prosecutions for proselytism - and likewise convictions - has been drastically reduced.
The "Kokkinakis" and "Manoussakis" judgments were well accepted by the lower judicial authorities.
In three (3) decisions there have been complaints for illegal operation of house of prayer in northern Greece.
Those complaints were against the Church of Jesus Christ of Latter Days Saints  , the Free Apostolic Church of Pentecost  , and of 13 other religious minorities, wherein the prosecutors of the first instance court have contested the constitutionality and even the accordance with the Convention of the law which requires a prior permit by the authorities for the operation of a house of prayer.
In all cases, though, the accused were declared not guilty, not because of the antithesis of the Law to the Constitution or to the Convention, but because their guilt was not proven.
On the occasion of the sentence of imprisonment of a lady for illegally operating a house of prayer and meetings of Buddhists, the Cassation Court (Supreme Civil Court) of the country did not demonstrate the boldness that was perhaps expected by the religious minorities.
The Cassation court has judged that the law which requires a prior administrative permit for the operation of a house of prayer, is not in violation of the right of religious freedom as article 13 of the Constitution and article 9 of the Convention provide it for  .
According to the Cassation Court, the Administration may first examine if the house of prayer permit requested is for a known religion, if the cult of that religion violates public order or moral principles, if the believers take any actions of proselytism and, lastly, if the formal requirements of the relevant law are fulfilled.
The only requirement that was found unconstitutional and in breach of the Convention was that of the "need" for the institution of the house of prayer.
Only two (2) of the judges had the opinion that this preventive system was in breach of both the Constitution and the Convention.
According to the dissenting view, it is a sad experience for the religious minorities that this system permits "delay to the granting of the permit" and also "improper refusal of the permit on indefinite grounds, as certain elements might not exist"  .
Of course under the influence of the repeated condemnation of Greece by the Court of Strasbourg for breaching religious freedom, the Council of State, the supreme administrative court of the country, has issued several judgments, which reinforce the protection of religious minorities.
On that basis, pupils who are not believers of the Christian Orthodox religion may be exempt, without any sanction, from the attendance of the lesson of religion and from any participation to religious ceremonies  .
The Council of State has of course accepted that since the vast majority of the Greek population is Christian orthodox  , the promotion of religious consciousness of Greek children (which according to article 16 of the Constitution is one of the aims of national education) should be carried out according to the orthodox Christian beliefs, and indeed for quite a number of hours every week  .
Many of the constitutional law professors do not agree with that decision. For them the removal from the Constitution of any reference to the "Greek Christian spirit" in education, as was in all previous constitutions , means that the lesson of religion should be taught in schools as a science of religion, meaning as a presentation of all religions.
Indeed the schoolbooks of religion do not teach religious tolerance at all.
One of those books characterizes all heresies as a "threat and challenge" for the Greek society and gives as examples of such dangerous sects, Scientology, the Unification Church, the Pentecostal Church and the Church of Jesus Christ of Latter Days Saints.
It is to be noted that those two last religious minorities have been operating many houses of prayer in Greece for many years now.
The Council of State is already called upon to decide a major issue of religious freedom: the value of the principle of religious self-determination.
According to this principle, the Administration has accepted that the decision of the Jehovah's Witnesses to call themselves "Christian Jehovah's Witnesses" is outside the control of the State.
A local bishop of the prevailing religion has filed an application to the Council of State against that decision, but the reporting judge of the case has proposed rejection of the application. A decision on this case has not yet been issued.
The question raised by the case of the Greek Church of Scientology is more important for new religious movements.
As we already said, a petition of Scientology's believers for the grant of a house of prayer permit was rejected by the administration, on the ground, among other reasons , that Scientology is not a religion.
Therefore, the Council of State will have to decide whether that decision of the Administration violates the Constitution's or the Convention's provisions where it is ruled that "freedom of religious conscience is inviolable".
This is a major issue, as those provisions will remain "dead letter" if the Administration has the authority to deny the religious character of a system of convictions.
In the same cases the Council of State will judge whether the interference of the prevailing religion to the relations between religious minorities and the State is in accordance with the Convention.
Indeed, in the case of the Greek Church of Scientology, the Christian Orthodox Archbishop of Athens has filed an intervention before the Council of State, supporting the decision of the Minister of National Education and Religious Affairs
As we see the "Kokkinakis" and "Manoussakis" judgments did not affect the Greek State in a way that it would resolve the two major problems of religious minorities: the prohibition of so-called illegal proselytism and the need for an administrative permit to operate a house of prayer.
Those problems still exist mostly because of the political influence of the Greek Orthodox Church, which, as I already mentioned, is proclaimed by the Constitution as the "prevailing" religion.
This influence is explained by two reasons.
First, 94 % to 97.5 % of the Greek population is Christian Orthodox.
Secondly, in the value system of the Greek nation, Orthodoxy is not just a religion but it is rather a component of the Greek national identity.
In the common belief it is because of the ministers of the Orthodox Church that the Greek race was not vanished during the four centuries of Ottoman Occupation  .
This explains the omission of the legislator to elaborate on those matters as well as the ephemeral and uncertain attitude of the Administration.
But Greece is the country of contrasts and miracles.
It is true that the political authority has not abolished the laws that exist at the expense of religious minorities, laws which were censured as unconstitutional and which caused the condemnation of Greece by international organizations.
On the other hand the government decided to remove religious affiliation from national identity cards.
This decision led the Greek Orthodox Church to organize huge protest rallies and to launch an informal referendum to petition the Government to allow religious affiliation as an option to identity cards.
In March 2001, the Greek Orthodox Church claimed to have collected 3,008,000 signatures, almost 42.8 % of the voters, in the last parliamentary elections  .
This last governmental decision caused a crisis in the relations of the State and the prevailing religion. As a result, the Archbishop of the Greek Orthodox Church has recently, two years before the parliamentary elections , asked from all political parties to clarify their position on Church/State relations.
It is not of course surprising to say that the decision to remove religious affiliation from national identity cards was not taken by the Parliament. Such a law would have proven fatal for the political career of the deputies who would have voted for it.
So, the dispute over the law that made obligatory the reference of religious affiliation on national identity cards, started with an opinion issued by the Data Protection Agency, an independent administrative organization, which considered that with this reference a personal sensitive data is revealed without cause  .
The opinion of the Data Protection Agency was adopted by a ministerial decision that abolished the reference of religious affiliation on national identity cards. The Council of State has also adopted the same position as it judged that the notation of religious beliefs on the identity cards violates religious freedom  .
The Supreme Administrative Court of Greece has judged that even the optional notation of religious affiliation on the identity cards is unconstitutional, since it facilitates discriminations both from the state and the individuals against religious minorities.
This decision was not unanimous. According to the dissenting view the prohibition of optional reference of religious affiliation on the identity cards violates article 9 of the Convention and especially the right of declaring one's religious beliefs.
The majority opinion did not elaborate this latter provision, judging that in any case the Constitution is superior to the Convention.
So, the Court of Strasbourg has to face those difficult issues: the conflict between positive and negative religious freedom and generally the conflict between majority and minorities, or the problem of protecting the majority.
Through the practice of its organs and mostly through the acts of the legislative authority, the State succeeded not only to leave religious minorities substantially unprotected but also to displease the religious majority.
So, even if the laws, which refer to the houses of prayer, do not lead to any more convictions and locking up religious minorities' places of worship, they still continue to be a threat for religious minority's freedom.
What is more the prohibition of religious affiliation references on identity cards, was more of a symbolical act at the expense of the prevailing religion than one in favor of freedom of religious minorities.
Indeed it does not guarantee the improvement of their position, which would certainly be guaranteed through the abolition of the laws for proselytism and preventive control of operating a house of prayer.
Such a decision would, however, have, as we say in Greece, "great political cost".
It certainly is a situation that does not promote religious pluralism and religious tolerance.
 The Council of State has accepted that such a "need" occurs if the applicants are at least seven (7) (Council of State decision no 1842/1992) and there is no other house of prayer in the neighbourhood (Council of State decision no 3669/1985).
 The Greek Civil Code allows the institution of associations with religious purposes but the institution of such an association does not by itself give authority for operating a house of prayer, for which a prior permit of theAdminisration is necessary
 Art. 7 of Law no 2833/2000.
 Prior to that the Council of State had accepted (decision no 1601/1998) that those who must take an oath and are reluctant for reasons of religious consciousness, might swear on their consciousness and their honor, even if there was no relevant legislative provision
 Report no 5979.2.2/24-04-2002
 According to decision no 2214/2000 of the Council of State no previous administrative permit is required for this activity
 Report no 93/1998 of the Prosecutor of the First Instance Court of Kavala, Yperaspisi 1999. 450
 Report no 212/2001 of the Prosecutor of the First Instance Court of Kavala, Poiniki Diki 2002.391
 Decision no 20/2001, Poiniki Diki 2002.123
 We should also note that this decision was issued at the same time that the National Committee for Human Rights (consultant to the State in matters of human rights protection and which reports to the Prime Minister) suggested the abolition of the law and advised to require only an urban planning permit for the institution and function of a house of prayer
 Council of State decision no 3356/1995
 In its decision no 3533/1986 the Council of State accepted that a Jehovah Witness could teach literature in public schools, but not religion
 Council of State decision no 2176/1998
 It is worth note that almost a decade ago a confidential report of the Greek Central Intelligence Agency deemed all non-Christian Orthodox Greeks as traitors of the nation. The report exempted the Jewish, but this was probably due to an effort of avoiding accusations of anti-Semitism
 This percentage is even higher since the population of Crete and Dodecaneese, which depend on the Patriarchate of Constantinople, did not participate
 The Ombudsman (report no 7443.00.2.1/22-05-200) has also decided against the reference of religious affiliation in administrative documents, for example on municipal registers and on senior high school degrees
 Decision no 2281/2001
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